J-S46039-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

OMAR M. SHELTON,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 2921 EDA 2015

Appeal from the PCRA Order August 17, 2015

in the Court of Common Pleas of Chester County,

Criminal Division, at No(s): CP-15-CR-0000736-2011

CP-15-CR-0002483-2010

CP-15-CR-0002491-2010

CP-15-CR-0002492-2010

CP-15-CR-0002786-2010

BEFORE: BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 04, 2016

Omar M. Shelton (Appellant) appeals from the order entered on 

August 17, 2015, which denied his petition filed pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

On October 25, 2011, November 3, 2011, and January 8, 2013, 

Appellant entered guilty pleas at all five above-captioned case numbers and 

was sentenced to various terms of incarceration, which he is currently 

serving. No direct appeals were filed. On October 28, 2013, Appellant filed 

pro se a motion to modify sentence nunc pro tunc. On January 9, 2014, 
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following a hearing, Appellant withdrew his motion. The court entered an 

order to that effect on the same day.1

On August 8, 2014, Appellant filed the instant PCRA petition and 

counsel was appointed. On September 18, 2014, counsel moved to withdraw 

his appearance pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en 

banc). On October 27, 2014, Appellant filed an answer to counsel’s petition 

to withdraw. On May 26, 2015, the PCRA court issued its notice of intent to 

dismiss. Appellant did not file a response. On August 17, 2015, the PCRA 

court dismissed Appellant’s petition as untimely and permitted counsel to 

 

1

It is clear that the PCRA court erred in not treating this filing as a PCRA 

petition. 

Generally, a filing that raises issues with respect to remedies 

offered under the PCRA will be considered a PCRA petition. A 

prayer for relief, however, which does not fall within the 

remedies afforded by the PCRA will not constitute a PCRA 

petition. Thus, the initial question in a collateral filing is whether 

the petitioner has an available remedy under the PCRA.

Commonwealth v. Lutz, 788 A.2d 993, 996 n. 7 (Pa. Super. 2001) 

(citations omitted). In his October 28, 2013 motion, Appellant raised 

legality-of-sentence claims cognizable under the PCRA. See

Commonwealth v. Hockenberry, 689 A.2d 283, 288 (Pa. Super. 1997) 

(untimely motion to modify illegal sentence treated as PCRA petition, since 

issues relating to legality of sentence are cognizable under PCRA). 

Accordingly, the PCRA court erred in not treating this filing as a timely first 

PCRA petition and appointing counsel. The remedy for this error is to 

appoint counsel for the subsequent PCRA petition, which was done here. 

See e.g. Commonwealth v. Davis, 563 A.2d 932 

(Pa. Super. 1989).
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withdraw. This appeal followed.2 The PCRA court did not order Appellant to 

file a statement pursuant to Pa.R.A.P. 1925(b) and none was filed; however, 

the court did file a 1925(a) opinion.

Our standard of review of the denial of a PCRA petition is limited to 

examining whether the court’s rulings are supported by the evidence of 

record and free of legal error. Commonwealth v. Anderson, 995 A.2d 

1184, 1189 (Pa. Super. 2010). Under the PCRA, all petitions must be filed 

within one year of the date that the petitioner’s judgment of sentence 

became final, unless one of three statutory exceptions applies. 42 Pa.C.S. 

§ 9545(b)(1); Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006). 

For purposes of the PCRA, a judgment of sentence becomes final at the 

conclusion of direct review. 42 Pa.C.S. § 9545(b)(3). “The PCRA’s time 

restrictions are jurisdictional in nature.” Chester, 895 A.2d at 522. “Thus, 

‘[i]f a PCRA petition is untimely, neither this Court nor the [PCRA] court has 

 

2 Appellant’s notice of appeal was received by the trial court one day after 

the September 17, 2015 filing deadline. The envelope in which the notice 

was mailed was not date stamped by the post office or the clerk of courts; 

however, Appellant dated his notice “September 11, 2015.” Appellant’s 

Notice of Appeal. Because Appellant was incarcerated at the time his notice 

of appeal was filed, we may assume that Appellant placed it in the hands of 

prison authorities on or before September 17, 2015. Thus, we hold that his 

notice of appeal is timely-filed under the prisoner mailbox rule. See 

Commonwealth v. Patterson, 931 A.2d 710 (Pa. Super. 2007) (holding 

that even without a postmark definitively noting the date of mailing, this 

Court may find an incarcerated appellant’s filing timely where the date of 

receipt indicates that appellant placed the document in the hands of prison 

authorities in advance of the applicable filing deadline).
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jurisdiction over the petition. Without jurisdiction, we simply do not have the 

legal authority to address the substantive claims.’” Id. (quoting 

Commonwealth v. Lambert, 884 A.2d 848, 851 (Pa. 2005)).

Because he did not take a direct appeal from the judgment of sentence 

imposed at any of his five docket numbers, Appellant’s judgments of 

sentence became final on November 24, 2011 (2786-2010 and 2483-2010) 

and February 7, 2013 (736-2011, 2491-2010 and 2492-2010). Accordingly, 

Appellant had until November 24, 2012 and February 7, 2014, in order to file 

timely PCRA petitions.

Appellant filed the PCRA petition at issue in this case on August 18, 

2014. Because this filing was untimely under any docket number, he had 

the burden of pleading and offering to prove one of the following exceptions: 

(i) the failure to raise the claim previously was the result of 

interference by government officials with the presentation of the 

claim in violation of the Constitution or laws of this 

Commonwealth or the Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were unknown 

to the petitioner and could not have been ascertained by the 

exercise of due diligence; or

(iii) the right asserted is a constitutional right that was 

recognized by the Supreme Court of the United States or the 

Supreme Court of Pennsylvania after the time period provided in 

this section and has been held by that court to apply 

retroactively.

42 Pa.C.S. § 9545(b)(1). Moreover, he was required to show that the 

petition was “filed within 60 days of the date the claim could have been 
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presented.” 42 Pa.C.S. § 9545(b)(2). This is true even where, as here, 

Appellant’s petition presents a legality-of-sentence claim. See 

Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013) (“[A] 

court may entertain a challenge to the legality of the sentence so long as the 

court has jurisdiction to hear the claim. In the PCRA context, jurisdiction is 

tied to the filing of a timely PCRA petition. Although legality of sentence is 

always subject to review within the PCRA, claims must still first satisfy the 

PCRA’s time limits or one of the exceptions thereto.”) (citations omitted).

Because Appellant has not pled or proven one of the aforementioned 

exceptions, we agree with the PCRA court’s conclusion that Appellant’s 

August 18, 2014 petition was untimely filed. Finding no error on the part of 

the PCRA court, we affirm the court’s order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/4/2016